Children only get one childhood: Canadian Human Rights Tribunal issues a Second Compliance Order Against the Government of Canada on the First Nations child welfare case

OTTAWA, Sept. 15, 2016

In a decision released today, the Canadian Human Rights Tribunal ("Tribunal") found that the Canadian Government (INAC) has failed to comply with the Tribunal's January 26, 2016 order finding Canada racially discriminates against over 163,000 First Nations children by providing flawed and inequitable child welfare services and failing to properly implement Jordan's Principle.

The Tribunal ordered the federal government to immediately cease its discriminatory conduct. In April of 2016, the Tribunal issued another order noting the slow pace of change and ordering the government to properly implement Jordan's Principle by May 10, 2016 and provide detailed reports on why Budget 2016 investments were sufficient. The federal government provided the reports and the First Nations Child and Family Caring Society subsequently argued that Canada's actions on Jordan's Principle and vague reports failed to comply with the Tribunal orders.

In today's decision, the Tribunal makes clear that "it rests on INAC and the federal government to implement the Tribunal's findings and orders and to clearly communicate how it is doing so, including providing a rationale for their actions and any supporting data and/or documentation, ensures the Panel and the parties that this is indeed the case." The Tribunal finds that the federal government has not addressed the most egregious discriminatory effects of its child welfare program pending longer term reform despite knowing about solutions to fix many of the problems over a decade. According to the Tribunal, Canada's failure to deal promptly with key findings of the Tribunal's January decision in a timely manner is ''reflective of INAC's old mindset that spurred this complaint" and ''this may imply that INAC is still informed by information and policies that fall within this old mindset and that led to discrimination''. The Tribunal ordered Canada to take immediate action to ensure its program budget responds to the unique needs of First Nations children and families and to apply Jordan's Principle to all First Nations children on and off reserve. In addition, the Tribunal orders INAC to produce detailed evidence to support its claims that investments announced in Budget 2016 and the more recent announcement of $382 million for Jordan's Principle comply with the January order. The reports are due on September 30, 2016 and October 31, 2016. The Tribunal will retain jurisdiction over the complaint.

The Truth and Reconciliation Commission listed child welfare reform and implementation of Jordan's Principle as its top Calls to Action. In response to today's decision, Dr. Cindy Blackstock, Executive Director of the First Nations First and Family Caring Society, said: "I was shocked we even had to file this case to get the Government of Canada to treat First Nations children fairly in the first place and now I am profoundly disappointed to see the government's ongoing failure to comply with repeated legal orders to stop its discriminatory conduct. Every Canadian should be concerned that the federal government is acting as if it is above the law and First Nations children are below the law."

"We have to remember that this is first and foremost about children and their safety and well-being," said AFN National Chief Bellegarde. "I welcome today's ruling by the Human Rights Tribunal but it is disappointing to see that Canada has to be pushed to respect human rights and end discrimination against First Nations children. Canada must be more transparent and work with us a on a better system to reform the federal First Nation child welfare program that is supported by fair funding based on real needs. This is, after all, about working together in the interests of our children."

Professor Sébastien Grammond, one of the lawyers representing the Caring Society, added that "ensuring compliance with human rights requires enforcement orders such as those issued by the Tribunal today. These orders put the responsibility for compliance squarely with the government. We could not be more pleased with the decision."

About: The First Nations Child and Family Caring Society (Caring Society) is a national non-profit organization dedicated to the wellbeing of First Nations children and their families.

Background

The case was filed in 2007 by the First Nations Child and Family Caring Society (Caring Society) and the Assembly of First Nations. The Canadian Government spent millions on at least 8 separate unsuccessful attempts to get the case dismissed on legal technicalities despite its own officials and documents detailing the funding gaps incentivizing the removal of First Nations children from their families and placing them in "circumstances that are dire." The case finally went to trial before the Canadian Human Rights Tribunal in 2013 but hearings were disrupted as an access to information request revealed that the Canadian government failed to disclose over 90,000 documents which were highly prejudicial to its case. Hearings resumed in the late fall of 2013 and concluded a year later.

In the January 2016 decision, the Tribunal found that the government's provision of First Nations child welfare services to over 163,000 children created perverse incentives to place First Nations children in foster care and failed to reflect their distinct needs and circumstances. The Tribunal also found Canada's narrow interpretation of Jordan's Principle, a measure to ensure First Nations children can access government services on the same terms as other children, was discriminatory on the basis of race and national ethnic origin. The Tribunal ordered Canada to cease its discriminatory conduct immediately and reform First Nations child welfare program and Jordan's Principle in compliance with the order.

The case is the subject of a National Film Board documentary directed by master film maker Alanis Obomsawin entitled "We Can't Make the Same Mistake Twice." The Toronto International Film Festival (TIFF) hosted the world premiere of the documentary earlier this week.